Off the Record with the Police

February 22, 2016
By
McGoughLaw P.C., L.L.O.

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Should you be walking along a street in Lincoln and be accosted by a police officer, and they begin asking you some questions, remember this: anything you say to the officer can and will be used against you in a court. Should it come to that. Now perhaps the officer is simply asking you for the time of day or noting the weather, even with that bland of a statement, your response is always "on the record."

While most people are vaguely aware of the Miranda Warning that is issued to criminal suspects when they are arrested, they may not realize that in reality, Miranda did not go far enough.

If the Fifth Amendment prevents police from compelling answers after you are under arrest because you are suspected of having committed a crime, they certainly cannot compel a person to answer questions when the officer lacks the probable cause necessary to authorize an arrest.

Miranda should have required police to inform you that you need to speak with them at all before they ask you a question. Nonetheless, always remember, your interaction with police is always on the record.

In a case from Lincoln, a man is accused of shooting his brother. He spoke with law enforcement after the incident, stating that his comments were "off the record," in spite of having refused to sign a statement and requesting an attorney.

Two things are important here. As we have noted, nothing said to any police officer is off the record, especially if they are investigating you for a crime. Nothing. The Miranda warning is required after an arrest because the Supreme Court recognized the ability of police to manipulate statements from accused persons.

Second, never speak with the police in this circumstance. You cannot "explain" anything in a way that will lessen the likelihood of your arrest or prosecution. Your cooperation will not make any difference in the charges you face; those are dictated by the evidence and your continued speaking will only provide more evidence towards that prosecution.

A judge has ruled that the man clearly did not understand his rights and that the statement to officers was not admissible. The prosecution has appealed that ruling.

If anyone is going to explain anything to the police, let it be your attorney.

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